Central Administrative Tribunal - Kolkata
Jagannath Barik vs M/O Defence on 13 September, 2023
. : 1 9.8, 350,00241.2016 CENTRAL ADMINISTRATIVE TRIBUNAL KROLERATA BENCH, KOLKATA No. O.A. 8350/0024) /2010 Heard an: 18.06.2020 Date of order: (8-420 iy Present: Hon'ble Mr. Anindo Majumdar, Administrative Member Sri Jagannath Barilk, Son of Late irali Charan Bark, Residing at Z4, Raja Road, Past Office suse chew nee ah}, District Na 2) Parsarnas PIN 7OOLI '5 And working for gain as Ticket Ne. 2930, Trade Fitter, SO', Army Base Workshop, Kakinara, North 24 Parrane PIN ~ 744124. cavers Applicant 1. The Union of India, Service through the Secretary, Ministry of Defences, Government of India, Having office at South Block, New Deihi- LTOO00O1. The Director General EME GEMC Cor}, Master General of Ordance Brarich, i}, HO of M.O.D. (Army, Post Office Delia Headquarters New Delhi- 110001. 3. The Commander Headquarters Base Werkshap, GREEME}, Dethi Cantonment, New Delhi~ L1Q010, 4. The Area Account's Officer, Soa7, Army Base Workshop, EM Block, Sector V, Salf Lake, Kolkata ~ FQOO09T. ahh 8. The Commnancdant (MD), S07, Army Base Wrokshop, Kakinara, e ESD (Machinery), X Bk cath, ort Past afiie O 2 O.a. 350.00241.2016 North 24 Parganas, PIN 743124. 6. The Administrative Officer, Finance Section, 507, Army Base Wrokshop, Kakinara, Post office ESD (Machinery), North 24 Parganas, PIN 743124 7. The Under Secretary, - Department of Health and Family Welfare, Government of India, Of Nirman Bhawan, Moulana Azad Road, New Delhi -- 110108. .... Respondents For the Applicant : Mr. N. Roy, Counsel For the Respondents : Mr. S. Paul, Counsel ORDER
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:-
is a)
b) Order or orders thereby setting aside the impugned memo dated August 31, 2015 issued by the General Manager, Administration, Finance Section, 507 Army Base Workshop, Kakinara, the respondent no. 6 herein, being annexure "A - 17" herein and directing the respondent authorities to add the respective periods of leave availed by the applicant due to his treatment at Christian Medical College, Vellore as medical leave on and from the year 2008 in the list of medical leave and further to return back the amount which has been deducted from the salaries of the applicant for the purpose of realization of the above mentioned travelling allowances;
Any other or further order or orders as to this Hon'ble Tribunal may deem fit and proper."
2. This Original Application pertains to recovery. In accordance with the orders of Chairman, CAT dated 10.9.2021, issued under sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, this O.A. can be PAD 3 o.a. 350.00241.2016 taken up by a Bench consisting of a Single Member. Accordingly, this case is taken up for disposal by the Single Bench.
3.
4. The facts of the case are summarized as below:
3.1. The applicant was working in 507 Army Base Workshop at Kankinara, West Bengal. The applicant, during his- visit to Kanyakumari, fell ill and was admitted to CMC, Vellore where he was diagnosed with Type 2 Diabetic Mellitous and has undergone Coronary Angiography on 15.3.2007.
3.2. The applicant has been visiting CMC, Vellore for the purpose of medical check up regularly.
3.3. However, respondent No. 6 vide impugned memo dated 31.8.2015 directed the applicant to refund travelling allowance/dearness allowance which was paid to the applicant from 2008 onwards.
3.4. Aggrieved by the said impugned memo, the applicant filed this Original Application before this Tribunal.
The submissions made by the applicant in his pleadings are summarized as below:-
4.1. The applicant availed Leave Travel Concession for the purpose of visiting Kanyakumari during March, 2007. During his visit to Kanyakumari, he was detected with Coronary Artery disease etc. and was admitted to Christian Medical College, Vellore for treatment. He underwent Coronary Angiography on 15th March, 2007 at CMC Vellore. Thereafter, the applicant visited CMC, Vellore for medical check up as advised by the Medical board of CMC Vellore. For this visit, he obtained permission from the Director of ae, 4 0.a. 350.00241.2016 Health Services, Govt. of West Bengal as required under the CS (MA) Rules, 1944.
4.2. Respondent No. 4, 5 and 6 paid entire travelling allowance and dearness allowance for him as well as one attendant. He visited CMC, Vellore for medical check up during the year 2008, 2009, 2010, 2011, 2012, 2013, 2014 & 2015.
4.3. He was directed, vide the impugned memo dated 31.8.2015, to refund back the amount received by him since the year 2018 as travelling allowance /dearness allowance for his visits to Vellore for medical check up at CMC, Vellore.
4.4. He had availed leave of 81 days upto March, 2015 for visiting CMC, Vellore since 2008 for his treatment. He was informed that the respondents had decided not to pay leave salary for the aforesaid period of 81 days.
4.5. The respondents started deducting a sum of Rs. 2,900/- from his salary from the month of September, 2015 and November, 2015.
4.6. The order of the respondents to refund the entire amount which was paid to him as travelling allowance/dearness allowance is impermissible in law.
5. The respondents, in their reply to the O.A., have submitted as under:
5.1. The Government of India, Ministry of Health & Family Welfare, vide letter No. $.14025/2/2008-MS dated 20.2.2008, have decided that Central Government Employees and their dependents can obtain medical services from any private hospital recognized by a
6. 5 o.a. 350.00241.2016 CGHS of any city of his choice without TA/DA even if the treatment for the ailment is available in the same city.
5.2. The applicant was accorded permission by the Director of Health Services, Government of West Bengal, vide their Office Memo No. HAD/7M-5.83/Pt-6/A 4374 dated 10.8.2007, for undergoing his treatment at CMC, Vellore.
5.3. The applicant has not placed any documents showing that permission from the Director of Health Service, Government of West Bengal for the year 2008, 2009, 2010, 2014/2015 had been accorded. | 5.4. The applicant was absent without leave during his visit to CMC, Vellore and had claimed Special Medical Leave/Sick Leave for the entire period of his treatment at CMC, Vellore. He is however not entitled to the said leave as claimed by him. Due to non-
submission of proper leave by the applicant, his period of absence on account of his visit to CMC, Vellore for medical check-up has not been regularized.
5.5. In terms of Govt. of India, Ministry of Health & Family Welfare letter dated 28.3.2000, the applicant is not eligible for TA/DA and has accordingly been directed to refund the amounts paid to him on this account, failing which it would be deducted from his salary. 5.6. The respondents have already deducted Rs. 5,800/- which was drawn by the applicant in the year 2015 and have not deducted the entire amount. | I have heard the Ld. Counsels for both the sides and have examined the material on record.
7. In terms of O.M. of Government of India, Department of Health &.
Family Welfare dated 20.2.2008, the applicant is not entitled to TA/DA QA 6 0.a. 350.00241.2016 C) for his travel to a city for availing treatment. The said letter is reproduced below:-
" -- F.No.S.14025/2/2008-MS Government of India Ministry of Health & Family Welfare Department of Health & FW Nirman Bhavan, New Dethi.
Dated the 20th February, 2008 OFFICE MEMORANDUM Subject: Removal of OM No. F.33-4/59-H.I. dated the 18th /29th July, 1960, regarding treatment in hospitals outside District/State, from CS(MA) Rules, 1944.
The undersigned is directed to refer to OM No. F.33-4/59-H.1. dated the 18th/19th July, 1960, which is Government of India decision no.4 under Rule (6) of CS(MA) Rules, 1944, wherein the following conditions for the treatment in hospitals outside District/State but within India, are mentioned:
1. Necessary and suitable facilities for treatment are not available in a Government of recognized hospitat at the District/State Headquarters or within the District or State where one fall ills, and
2. The treatment outside the District/State is recommended by the Authorized Medical Attendant and countersigned by the Chief Medical Officer of the District if the treatment to be undertaken outside the district or by the Chief Administrative Medical Officer of the State if it is to be undertaken outside the State.
2. The undersigned is also directed to state that a number of representations from various hospitals, Central Government Employees Welfare Coordination Committees and from various Ministries were received in the Ministry of Health & Family Welfare stating that the OM No. F.33-4/59-H.I. dated the 18tr /29tr July, 1960 is in contradiction to this Ministry's OM No. S. 14025/7/2000-
MS Dated 28.3.2000, which allows the Heads of the Department/offices to grant permission to the Central Government Employees and to their family to obtain medical services from any private hospital recognized by CGHS in any city of his choice without TA/DA even if the treatment is available in the same city.
3. The representations received in the Ministry have been examined carefully and the undersigned is directed to convey the approval of the competent authority to delete OM No. F.33-4/S9-H.I. dated the 18th /29th July, 1960 from CS(MA) Rules, 1944.
4. This Office Memorandum issues with the concurrence of IFD vide Dy. No.C-3155 dated 18.1.2008.
(Jai Prakash) Under Secretary to the Government of India."
8. The applicant travelled to Vellore for his treatment at Christian Medical College, Vellore on various occasions during the period 2007 to VL 7 0.a. 350.00241.2016 2015. In terms of Govt. of India, Deptt. of Health & Family Welfare letter No. $.14025/2/2008-MS dated 20.2.2008, he is entitled to obtain medical treatment from any private hospital recognized by CGHS in any city of his choice even if the treatment is available in the same city without being entitled to receive TA/DA for his journey to another city. In terms of the aforesaid letter, the applicant in this O.A. is not entitled to receive TA/DA for his journey to Vellore for availing medical treatment. However, he has been erroneously paid Travelling Allowance/Dearness Allowance for his travel to Vellore for medical check up at CMC, Vellore during the period 2008 to 2015. |
9. The applicant is a Group 'C' employee. There is no material on record to show that he had committed any fraud/misrepresentation to obtain the amounts towards TA/DA for his journey to Vellore for medical treatment there. |
10. Tn the case of State of Punjab & ors. v. Rafiq Masih (White Washer) ete. in Civil Appeal No. 11527 of 2014 (Arising out of SLP (C} No. 11684 of 2012), the Apex Court in its judgment had, inter alia, observed as under:-
"7, Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause"
would establish that the recovery being effected was iniquitous, and, therefore, arbitrary. And accordingly, the interference at the hands of this Court." .
AAKAKK _10. In view of the aforesaid constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitqus to the extent, that the action of recovery would be more unfair, more wrongful, more improper and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be Lu 8 0.a, 350.00241.2016 permissible in. law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State to citizens of this country, and render the action arbitrary, and, therefore, violative of the mandate contained in Article 14 of the Constitution of India."
The Hon'ble Supreme Court, while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) | Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(i1i) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
11. In Thomas Daniel (supra) the Hon'ble Supreme Court has observed, inter alia, in para 9 as under:-
"9, This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or Lone 9 0.a. 350,00241.2016 fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on 'the facts and circumstances of any particular case order for recovery of amount paid in excess."
12. In the instant case, the applicant is a Group 'C' employee. The respondents have not claimed that there was any misrepresentation or fraud on the part of the applicant nor is there any material on record to indicate that there has been any misrepresentation or fraud on the part of the applicant.
13. Recovery of Travelling/Daily Allowance paid to the applicant on account of his visits to CMC, Vellore during the period 2008-2015 from him is impermissible under law in the light of the judgments of the Hon'ble Apex Court in Rafiq Masih (supra) and Thomas Daniel (supra).
14. The respondents are directed to refund all amounts already recovered from him on account of TA/DA paid to him in connection with his visits to CMC Vellore for availing treatment within a period of 08 (Eight) weeks from the date of receipt of a copy of this order and to not make any further recovery from the applicant.
15. With these directions, the O.A. is disposed of. There shall be no order as to costs.
(Anindo Majumdar) Administrative Member sp